Curbing fraud or restraining speech?

Climatologists at the blog RealClimate long ago indicted
the journalistic failure of “false balance”—the presenting of unscientific
climate scoffing as credible. They quipped, by way of analogy, that’s it’s
false to try to balance NASA’s views with those of the Flat Earth Society. But
what about when climate-wars contentiousness shifts to a legal battlefield, as
in the widening fight over ExxonMobil’s climate-related statements, policies,
and actions?

A Mother Jonesarticle
opens by summarizing the shifted fight: “Does Exxon Mobil have a constitutional
right to sow doubt about climate science? That’s the subject of a high-stakes
legal battle playing out between dozens of state attorneys general, members of
Congress, corporate executives, and activists.”

In a 25 June press
release, the Democratic Party outlines platform planks. One blurb speaks of
“calling on the Department of Justice to investigate alleged corporate fraud on
the part of fossil fuel companies who have reportedly misled shareholders and
the public on the scientific reality of climate change.” In other words, the
Democrats have formalized what InsideClimate Newsheadlined
last October: “Hillary Clinton joins call for Justice Dept. to investigate Exxon.”

In an emailed “action alert” and on a web
page, the Union of Concerned Scientists (UCS) charges that Exxon is
“lashing out” against those who would hold it accountable. The company must
“stop blocking progress on global warming,” the UCS declares.

But on the right, the Daily Caller
headline “Dem Party platform calls for prosecuting global warming skeptics”
illustrates the defining of any investigation of alleged fraud as instead First
Amendment–trashing intimidation—as strong-arming that’s actually designed to
punish and deter climate scoffers’ speech. The article’s text highlights a
Democratic platform “provision calling for the Department of Justice to
investigate companies who disagree with Democrats on global warming science.”
But in fact, say fraud-investigation supporters, any such investigation merely
asks narrowly whether Exxon obtained but hid knowledge and, crucially, hid it
in ways that constitute fraud under the law.

The Competitive Enterprise Institute (CEI) and many others are buying no
such claim that restraining speech constitutes the curbing of fraud. “Abuse of
power” exclaimed the headline on CEI’s recent full-page New York Timesad.
It prominently displayed an image of the Statue of Liberty with its mouth
gagged. Although “all Americans have the right to support causes they believe
in,” the ad charged, a coalition of state attorneys general has “announced an
investigation of more than 100 businesses, nonprofits, and private individuals
who question their positions on climate change.” The ad declared that
“regardless of one’s views on climate change, every American should reject the
use of government power to harass or silence those who hold differing opinions”
in what CEI classifies as “political debates,” not scientific ones.

Media Matters distills
the counterargument seen on the left against such invoking of the First
Amendment: the “attorneys general are seeking to determine whether Exxon and
other companies knew the reality of climate change but publicly sowed doubt
about climate science in order to protect their profits. Reports from InsideClimate
News and the Los Angeles Times revealed that Exxon’s own
scientists had confirmed by the early 1980s that fossil fuel pollution was
causing climate change, yet Exxon funded organizations that helped manufacture
doubt about the causes of climate change for decades afterward.”

InsideClimate News (ICN) calls itself a “Pulitzer
Prize-winning, non-profit, non-partisan news organization dedicated to covering
climate change, energy and the environment.” Its investigative series last year
described, as ICNputs it,
“how Exxon conducted cutting-edge climate research decades ago and then,
without revealing all that it had learned, worked at the forefront of climate
denial, manufacturing doubt about the scientific consensus that its own
scientists had confirmed.” One
of ICN’s articles carried the headline “Exxon sowed doubt about
climate science for decades by stressing uncertainty: Collaborating with the
Bush-Cheney White House, Exxon turned ordinary scientific uncertainties into
weapons of mass confusion.”

Back in 1990, as the debate over climate change was heating up, a dissident
shareholder petitioned the board of Exxon, one of the world’s largest oil
companies, imploring it to develop a plan to reduce carbon dioxide emissions
from its production plants and facilities.

The board’s response: Exxon had studied the science of global warming and concluded
it was too murky to warrant action. The company’s “examination of the issue
supports the conclusions that the facts today and the projection of future
effects are very unclear.”

Yet in the far northern regions of Canada’s Arctic frontier, researchers
and engineers at Exxon and Imperial Oil were quietly incorporating climate
change projections into the company’s planning and closely studying how to
adapt the company’s Arctic operations to a warming planet.

The fraud allegations echo past experience with Big Tobacco, a precedent
emphasized by Harvard historian of science Naomi Oreskes and others. John
Schwartz at the New York Timescites
as “a turning point in the fight against tobacco” the “unearthing of industry
documents that showed the industry had long been aware of the health risks of
its products, and the enormous lengths to which the companies went to sow doubt
about the science.”

Compare newspaper excerpts separated by two decades:

From the 2015 Los Angeles
Times exposé: “The gulf between Exxon’s internal and external
approach to climate change from the 1980s through the early 2000s was
evident in a review of hundreds of internal documents, decades of
peer-reviewed published material and dozens of interviews conducted by
Columbia University’s Energy & Environmental Reporting Project and the
Los Angeles Times.”

From the 1994 New York
Times front-page article
“Tobacco company was silent on hazards”: “Internal documents from a major
tobacco company show that executives struggled with whether to disclose to
the Surgeon General what they knew in 1963 about the hazards of
cigarettes, at a time when the Surgeon General was preparing a report
saying for the first time that cigarettes are a major health hazard. The
executives of the company, the Brown & Williamson Tobacco Corporation,
chose to remain silent, to keep their research results secret, to stop
work on a safer cigarette and to pursue a legal and public relations
strategy of admitting nothing.”

Still, on the right it’s regularly argued
that Exxon has actually accepted climate science constructively. Schwartz at
the Times recently quoted
Exxon spokesman Alan T. Jeffers: “The great irony here is that we’ve
acknowledged the risks of climate change for more than a decade, have supported
a carbon tax as the better policy option and spent more than $7 billion on
research and technologies to reduce emissions.” The Wall Street Journalreported
online on 30 June that Exxon “is ramping up its lobbying of other energy
companies to support a carbon tax,” making it “the first major American energy
company to move closer to the positions of European energy firms ... which have
publicly advocated for a price on carbon.”

In 2008, the Guardianreported
that “a sizeable chunk of Exxon's investor base” was “uncomfortable” with the
company’s “hardline attitude towards climate change and alternative energy.” A
day later, the Christian Science Monitorpointed
out an intriguing paragraph from Exxon’s annual Corporate
Citizenship Report: “In 2008 we will discontinue contributions to
several public policy research groups whose position on climate change could
divert attention from the important discussion on how the world will secure the
energy required for economic growth in an environmentally responsible manner.”
The Monitor piece added that Exxon had also previously “backed away
from such groups.” Though without documentation or a link, it even reported
that “according to the Guardian, in 2006 the company stopped funding
the Competitive Enterprise Institute.”

Besides defense of Exxon, the struggle also involves elaborate attacks on
investigation proponents’ motivations. The Wall Street Journal’s
Kimberley Strassel proclaimed
on 17 June that the “crusade” is neither about the law nor even about Exxon;
it’s really “liberal prosecutors” seeking “to shut down a universe of their
most-hated ideological opponents.” She asserted that the “real target is a
broad array of conservative activist groups that are highly effective at
mobilizing the grass-roots and countering liberal talking points—and that
therefore must (as the left sees things) be muzzled.” She continued: “This is
clear from the crazy list of organizations [that Massachusetts Attorney General
Maura Healey] asked for information about in her subpoena. She demanded that
Exxon turn over decades of correspondence with any of them.”

Strassel compared the campaign to other alleged attempts “to shut down
conservatives,” listing “the IRS targeting, the Wisconsin John Doe probe, the
campaign against ALEC, [and] the harassment of conservative donors.” Also in
June, she published the bookThe
Intimidation Game: How the Left Is Silencing Free Speech.

The conservative columnist, Fox News pundit, and veteran climate scoffer
George Will, famed recently for renouncing the Republican Party because of its
presidential candidate, has also attacked investigation proponents’
motivations. In an April Washington Postcolumn
headlined “Scientific silencers on the left are trying to shut down climate
skepticism,” he listed what he sees as “core tenets of progressivism,”
including these:

“Politics should be
democratic but peripheral to governance, which is the responsibility of
experts scientifically administering the regulatory state.”

Occasionally, fraud-investigation opponents even allude to the old Soviet Union’s Lysenkoism—the extreme, and destructive,
politicization of science. On 29 June, the Wall Street Journal printed
a letter
calling the “Exxon probe ... a message to anyone daring to dispute the
climate-change consensus.” The letter charged that government “has too much
riding on climate change with all of its implications for tax revenue and
administrative-state power to permit dissent, and climate-change scientists
have too much riding on government research funding. As government inquisitors
move to shut off climate-change debate and punish heretics, it seems that
Lysenko’s ghost is now haunting the US.”

It’s no surprise that fraud-investigation proponents level motivation
charges too—about financial ones. Recently 13 Republican members of the House
Committee on Science, Space, and Technology wrote official letters
that requested documents from state attorneys general investigating Exxon.
Media Matters charges
that the 13 “have received over $3.4 million from the fossil fuel industry,
including over $126,000 from Exxon.” The Huffington Postreported
that Charles and David Koch—the “Koch brothers”—“have spent over $88 million in
*traceable* funding to groups attacking climate change science, policy and
regulation,” with $21 million of that total going to groups that helped pay for
that Competitive Enterprise Institute ad featuring a gagged Statue of Liberty.

Some in the media have now turned to lawyers, whatever is to be said about
the mixing of the scientific and legal questions. At the Times,
Schwartz recently quoted
Robert C. Post, the dean of Yale
Law School
and a constitutional scholar, who “rejected the notion that Exxon Mobil is
being gagged by the state efforts”:

“Debate is not being suppressed in any way by this,” he said, adding that
citing First Amendment rights has become “a weapon in the arsenal of those who
would seek to unravel the regulatory state.”

“They’re bringing it up because it sounds good.”

A week later, Post asserted in a Washington Post
op-ed that the “point is a simple one. If large corporations were free to
mislead deliberately the consuming public, we would live in a jungle rather
than in an orderly and stable market.”

Three days after that, Hans A. von Spakovsky of the Heritage Foundation—a
Republican lawyer with an MIT undergraduate degree—argued in a letter
responding to Post that “human-induced global warming is unproven.” He sought
to show that fraud-investigation supporters can adduce only weak evidence:

In the countersuit filed by the Competitive Enterprise Institute against the
outrageous subpoena issued by the U.S. Virgin Islands attorney general for
CEI’s climate-change research, the attorney general was forced to show his
cards. In a brief
filed in D.C. Superior Court, the only two supposedly fraudulent statements by
ExxonMobil he could cite were:

“International accords
and underlying regional and national regulations for greenhouse gas
reduction are evolving with uncertain timing and outcome, making it
difficult to predict their business impact.”

These statements merely express uncertainty over climate change and climate
policy. Anyone who believes these statements constitute fraud lacks common
sense and an understanding of the applicable legal standards.

The “abuse” of the First Amendment here is by state attorneys general acting
like a scientific Inquisition to silence what they believe is the wrong view in
this vigorous, unsettled scientific debate.

With summer’s arrival, the struggle’s leading public forum appears to be the
Wall Street Journal, where indirectly related opinion-page ads have
been challenging the opinion
editors’ climate statements. The 16 June WSJeditorial
“The climate police blink” mocked fraud-investigation supporters who had just
suffered apparent setbacks. US Virgin Islands Attorney General Claude Earl
Walker responded with a letter
that the WSJ headlined “Attorneys general are right to pursue Exxon
Mobil: Exxon Mobil and the CEI are attempting to argue that the First Amendment
protects them from producing the information that can shed light on whether
they broke the law.” Another WSJeditorial
argued that if Exxon had committed fraud, so had former vice president Al Gore,
whose “unproven claims” concerning climate “arguably mislead investors about
the value of clean-energy companies.”

That editorial ended by demonstrating that more contentiousness is surely
coming from both sides: “We don’t think anyone should be prosecuted for
engaging in political debate, but progressives have shown (see independent
counsels) that they’ll cease their abuses only when the same methods are used
against them.”

(Thumbnail credit: brownpau, CC BY 2.0)
---Steven T. Corneliussen, a media analyst for the American Institute of
Physics, monitors three national newspapers, the weeklies Nature and
Science, and occasionally other publications. He has published op-eds in
the Washington Post and other newspapers, has written for NASA's
history program, and was a science writer at a particle-accelerator laboratory.